Hello, many thanks for your question. My name is***** should be able to assist you with this.
Can you tell me how long the soakaway has been in this position, on their land, feeding from your land?
The soakaway has always been on their land as originally it was all one plot of land and when the land was divided the soakaway was already in position, I believe it was replaced and repositioned 30 plus years ago but still on the land that now belongs to the stable yard
Okay. Then I would imagine you have, at the very least, what is known as a prescriptive easement, which is an absolute legal right to effectively use the soak-away.
If they prevent you from replacing it, then that, in reality, is denying you your right to use it.
So I would imagine there is a decent argument here to say that you are entitled to have access to their land to replace the soak-away.
Additionally, it is always worth checking your land registry deeds, to see whether express rights have been granted.
If not, then the general common law position will prevail, which insofar as your position is concerned, is likely to be that you have a prescriptive easement.
And does this mean that a replacement can be laid on their land an
and if they are not in agreement we would have to apply for an Access order?
A like-for-like replacement, yes, there seems to be the possiblity here that you would be able to argue that. Y
It may not be as simple as applying for an access order. That may be part of the issue, but you may also need the court to declare that you have the right to do certain things, such as laying the replacement over their land. Access orders are normally used to maintain things on your own land. Here, you wish to do something different, and go across their land. To do that, you are likely to need to issue a claim, and have that determined that trial by judge if it is contested.
So a replacement soakaway would be acceptable but not replacing this with a filtration plant pipe that ran across their land to a stream
I think it's more likely you are only able to do the things you've had in place already.
So what would our course of action have to be if they were not in agreement to any of the options taking place
What if they didn't agree, and you couldn't find a solution without going across their land, then you have to issue court proceedings.
It would be unwise to go across their land without issuing a court claim.
Would this still be the case if we were just needing to replace the soakaway
Yes, I think you would still need to issue a call claim. This is because they object to you installing a soak away.
And as I said earlier, the access order is limited to doing things to your property, from their land.
Can you please explain a call claim
Sorry, I meant to write "court claim".
My fingers are faster than my braintoday.
Is there anything else I can assist you with in relation to this?
No problem, have you any idea of the success rate for this type of court claim I know you cannot be expected to be held to any reply but in the normal course of things would we be likely to succeed as there is no other way of disposing of the surplus
There are no statistics for this kind of thing I'm afraid. Any indication I gave you would be based upon my own experience, and even then, the facts of every case are manifestly different.
I expect you would stand a shout on the prescriptive easement argument, but don't think you would get very far with installing a w filtration plant etc.
There really is no substitute for going to see a solicitor now, getting all of the Land Registry documents together, going through the factual background in very careful and considerable detail, and understanding whether you do have a likely claim.
Can I just check whether you are happy with the service I've given so far?
So if our land registry document states that we have a prescriptive easement would that give us any additional rights?
If there is a right in the Land Registry documents, then it depends upon the wording, but yes, it might give you additional rights.
Sorry I can see that you have just answered my question whilst I was busy typing
Well you haven't actually answered my question but I am a lot more aware of what I am going to have to look for and how we need to move forward.
If there is anything more specific but I can usefully add for you Annette, I will certainly do that for you. Otherwise, please do remember to rate the answer for me, and if you need any further assistance in the future, I'll be pleased to help out however I can.
Many thanks I will now sign off